United States District Court, D. South Carolina, Charleston Division
WB MUSIC CORP., MUSIC OF THE CORN, LORIMAR MUSIC A CORP., DUKE OF EARLE, HEAVY METAL DISCO, REHITS MUSIC, SONGS OF BLACK RIVER, I LOVE PIZZA MUSIC, and WHO WANTS TO BUY MY PUBLISHING, Plaintiffs,
NORTH CHARLESTON HOSPITALITY GROUP, LLC and SAM MUSTAFA, Defendants.
ORDER AND OPINION
RICHARD M. GERGEL JUDGE.
matter is before the Court on Defendants' Motion to Set
Aside Default. (Dkt. No. 19.) For the reasons set forth
below, the Court denies the motion without prejudice.
February 2019, Plaintiffs filed this copyright infringement
action against Defendants North Charleston Hospitality Group,
LLC and Sam Mustafa (collectively "Defendants").
(Dkt. No. 1.) The Complaint alleges, generally, that the
Defendants used copyrighted music without permission.
(Id.) The Complaint was served upon Defendants in
March 2019, and Defendants failed to file any Answer or
Response within 21 days, as required by Rule 12 of the
Federal Rules of Civil Procedure. (Dkt. Nos. 7, 8.)
Thereafter, Plaintiffs' Requested an Entry of Default
Against Defendants, and the clerk entered a default on April
19, 2019. (Dkt. Nos 9 - 12.) Defendants eventually filed
Answers on May 14, 2019. (Dkt. Nos. 13, 14.)
now move to set aside default. (Dkt. No. 19.) Plaintiffs
oppose, arguing that Defendants fail to articulate a
meritorious defense and delayed filing their motion. (Dkt.
Rule 55 of the Federal Rules of Civil Procedure, the Court
may set aside an entry of default for good cause.
Fed.R.Civ.P. 55(c). This good cause standard is liberally
construed "to provide relief from the onerous
consequences of defaults and default judgments."
Lolatchy v. Arthur Murray, Inc., 816 F.2d 951, 954
(4th Cir. 1987); see also Tolson v Hodge, 411 F.2d
123, 130 (4th Cir. 1969) ("Any doubts about whether
relief should be granted should be resolved in favor of
setting aside the default so that the case may be heard on
the merits."); Colleton Preparatory Acad., Inc. v.
Hoover Universal, Inc., 616 F.3d 413, 417 (4th Cir.
2010) ("We have repeatedly expressed a strong preference
that, as a general matter, defaults be avoided and that
claims and defenses be disposed of on their merits.")
general, "a default should be set aside where the moving
party acts with reasonable promptness and alleges a
meritorious defense." Consol. Masonry &
Fireproofing, Inc. v. Wagman Constr. Corp., 383 F.2d
249, 251 (4th Cir. 1967). Defendants moved with reasonable
promptness here, remaining active in the case since filing
their Answers and responding to the clerk's Entry of
Default within one month and before a default judgment was
entered. (Dkt. No. 19.)
Defendants have not expressed a "meritorious
defense." (Dkt. Nos. 13, 14). "[A]ll that is
necessary to establish the existence of a 'meritorious
defense' is a presentation or proffer of evidence, which,
if believed, would permit either the Court or the jury to
find for the defaulting party." United States v.
Moradi, 673 F.2d 725, 727 (4th Cir. 1982). Defendants
have not presented or alleged any evidence whatsoever in
their Answers and included no more than general denials of
the Plaintiffs' detailed factual allegations or denials
based on a lack of "sufficient knowledge...." (Dkt.
Nos. 13, 14.) Notably, Defendants do not clearly deny the
paragraphs in the Complaint alleging unauthorized use of the
copyrighted music, ¶¶ 18, 22 - 23, instead
asserting a denial solely base on lack of "sufficient
knowledge...." (Dkt. Nos. 13 at ¶ 11; 14 at ¶
11.) Notably, an action for copyright infringement does not
require proof of intent or knowledge, and Defendants here do
not unequivocally deny unauthorized use. Sater Design
Collection, Inc. v. Waccamaw Const., Inc., No. CIV.A.
4:08-CV-4133, 2011 WL 666146, at *7 (D.S.C. Feb. 14, 2011)
("Even an innocent infringer is liable for
infringement[;] ... intent or knowledge is not an element of
infringement.") quoting Fitzgerald Publ'g Co. v.
Baylor Publ'g Co., 807 F.2d 1110, 1113 (2d
Cir.1986). Defendants have therefore failed to provide a
meritorious defense as they have not proffered any evidence
which would permit a finding for the defaulting party.
See Augusta Fiberglass Coatings, Inc. v. Fodor
Contracting Corp., 843 F.2d 808, 812 (4th Cir. 1988)
("The underlying concern is ... whether there is some
possibility that the outcome ... after a full trial will be
contrary to the result achieved by the default.")
quoting 10 C. Wright, A. Miller & M. Kane,
Federal Practice and Procedure § 2697, p. 531 (2d ed.
the Court finds that while the default should not be set
aside at this time, there are less drastic alternatives to
allowing the entry of default to stand and an inevitable
motion for a default judgment. See Colleton Preparatory
Acad., Inc. v. Hoover Universal, Inc., 616 F.3d 413, 417
(4th Cir. 2010) ("When deciding whether to set aside an
entry of default, a district court should consider... the
personal responsibility of the defaulting party, the
prejudice to the party, whether there is a history of
dilatory action, and the availability of sanctions less
drastic") (citations omitted). Notably, there is little
risk of prejudice to Plaintiffs as the case was filed on
February 25, 2019 and no litigation has yet taken place, and
there is no evidence of a history of dilatory action by
Defendants outside of the failure to respond to the
Complaint. The Court also finds that less drastic
alternatives are available, and will deny Defendants'
motion without prejudice subject to the "subsequent
submission of prima facie evidence of meritorious
defenses." Charowsky v. Kurtz, No. CIV. A.
98-5589, 1999 WL 1038334, at *3 (E.D. Pa. Nov. 8, 1999)
(collecting cases). Defendants will therefore have thirty
days from the date of this order to present the Court with
facts constituting evidence of a meritorious defense.
Plaintiffs may do so with a renewed motion to set aside the
Court therefore DENIES WITHOUT PREJUDICE
Defendants' Motion to Set Aside Default (Dkt. No. 19).
This Order is SUBJECT TO RECONSIDERATION if,
within THIRTY (30) DAYS of this Order,
Defendants submit to the Court a renewed motion which
includes facts constituting evidence of a meritorious